Filed 9/12/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re Marriage of C.D. and 

G.D.

2d Civil No. B323428

(Super. Ct. No. D388847)

(Ventura County)

C.D.,

 Appellant,

v.

G.D.,

 Respondent.

A parent with “sole legal custody” of a child has “the right 

and . . . responsibility to make . . . decisions relating to the 

health, education, and welfare of [that] child.” (Fam. Code,1

§ 3006.) A noncustodial parent has none of these rights. To 

acquire them, the noncustodial parent must obtain custody. To 

do that, the noncustodial parent must demonstrate a significant 

change in circumstances warranting a new custody arrangement

that is in the child’s best interest. 

1 Unlabeled statutory references are to the Family Code. 
2

C.D. (Mother) appeals from the trial court’s postjudgment 

order granting a request from G.D. (Father) that she enroll their 

minor daughters in public school. Mother contends the order 

must be vacated because, without a change in custody, Father 

has no decision-making authority regarding their daughters’

education. We agree, and vacate the order. 

FACTUAL AND PROCEDURAL HISTORY

Mother and Father married in 2013. Their twin daughters, 

F.D. and S.D., were born four years later. Soon thereafter, 

Mother petitioned to dissolve the marriage. The trial court 

approved the dissolution petition and, after finding that Father

had sexually abused F.D. and S.D., granted Mother sole legal

custody. The court also barred Father from visiting his 

daughters, but did not terminate his parental rights. We 

affirmed the judgment on appeal. (See In re Marriage of C.D. 

and G.D. (Sept. 11, 2023, B318718) __ Cal.App.5th __ [p. 12].) 

While that appeal was pending, Father requested that the 

trial court order Mother to enroll F.D. and S.D. in public school 

for the 2022-2023 school year. He argued Mother had not 

provided their daughters with a formal education and that she 

was not competent to teach them. He also alleged Mother was 

isolating the girls and limiting their abilities to socialize with 

their peers. 

Mother responded that, absent a change to the trial court’s 

order awarding her sole legal custody, Father had no right to 

dictate how she educated their daughters. She also informed the 

court that her daughters were enrolled in an online

homeschooling program and had active social lives. 

The attempt to mediate the matter was unsuccessful. At a 

subsequent hearing, Mother testified that her daughters were 
3

enrolled in an online kindergarten program. She picked the 

program because she would not have to teach F.D. and S.D. 

herself; the program had instructors who videotaped lessons for 

the girls. Her niece thrived when she participated in the 

program during the 2021-2022 school year. 

F.D. and S.D. were in class from 8:00 a.m. to 2:00 p.m., and 

had homework afterward. Mother helped the girls with their 

assigned projects, and monitored their activities to ensure they 

complied with all school requirements. The girls were excited 

about the program, and looked forward to their lessons each day.

Regarding socialization, Mother said F.D. and S.D. enjoy 

meeting people and playing with their friends. They have karate 

classes two days a week, play at a local park at least twice a 

week, and attend Sunday school weekly. They regularly see 

cousins who live nearby, and have frequent weekend playdates. 

They also attend social events with other homeschooled children. 

Father testified that he is a state-certified high school 

teacher and would be better equipped than Mother to decide 

matters regarding their daughters’ education. He was concerned

Mother was isolating F.D. and S.D. from the outside world. He 

believed in-person school would be in the girls’ best interests 

because it would enable them to interact with other children and 

receive assistance from teachers. He also believed that 

video-based instruction had negative impacts on children.

The mediator testified as an expert on mediation and 

family custody issues. She opined that in-person school was in 

F.D.’s and S.D.’s best interests. Mother may not be qualified to 

teach her daughters. The girls should spend less time with 

Mother and more time with other adults. Professionals who 

regularly saw the girls in an educational setting could help 
4

evaluate whether their behaviors were concerning. Video-based 

education without interaction with an instructor could not 

replicate this evaluation. 

The trial court agreed with the mediator’s recommendation 

and granted Father’s request for an order directing Mother to 

enroll F.D. and S.D. in public school. Mother appealed and filed a 

petition for writ of supersedeas. We issued the writ, and stayed 

the trial court’s order pending resolution of the appeal. 

DISCUSSION

Mother contends the trial court abused its direction when it 

granted Father’s request for an order directing her to enroll F.D. 

and S.D. in public school because, absent a change in custody, he 

has no decision-making authority regarding their daughters’ 

education. (Cf. In re Marriage of Burgess (1996) 13 Cal.4th 25, 32 

[custody and visitation orders reviewed for abuse of discretion].) 

We agree because, notwithstanding the evidence adduced at the 

hearing on his request, Father has not shown a significant 

change in circumstances warranting a change to the existing 

custody order. 

A parent with “sole legal custody” has “the right and the 

responsibility to make the decisions relating to the health, 

education, and welfare of a child.” (§ 3006.) “Joint legal custody,” 

in contrast, means that both parents share those rights and 

responsibilities. (§ 3003.) Here, Father requested a say in his 

daughters’ education by asking the trial court to order Mother to 

enroll them in public school. But because Mother has sole legal 

custody of the girls, Father has no right or responsibility 

concerning their education. To obtain those, Father had to secure 

joint legal custody by showing a significant change in 

circumstances. (See Burchard v. Garay (1986) 42 Cal.3d 531, 535
5

[once initial custody order is in place, court must “preserve the 

established mode of custody unless some significant change in 

circumstances indicates that a different arrangement would be in 

the child’s best interest”].) 

The Supreme Court’s decision in In re Marriage of Brown & 

Yana (2006) 37 Cal.4th 947 (Brown), supports our conclusion. In 

that case, a mother had sole legal custody of her son. (Id. at p. 

953.) When she sought to move her son to Nevada, the son’s 

father opposed the move. (Ibid.) The mother argued the father’s 

opposition was irrelevant; as the parent with sole legal custody, 

she had the right to “make all decisions regarding [her son’s] 

residence and schooling . . . without interference from [his 

father].” (Id. at p. 956.) Our Supreme Court disagreed. It 

concluded that the father could potentially block the move if he 

were to “seek and obtain a custody modification based on a proper 

showing pursuant to the changed circumstance[s] rule.” (Id. at p. 

959.)

Brown, supra, 37 Cal.4th 947, stands in contrast to In re

Marriage of Furie (2017) 16 Cal.App.5th 816 (Furie) and Enrique

M. v. Angelina V. (2004) 121 Cal.App.4th 1371 (Enrique M.), 

cases on which Father relies. In Furie, the parents stipulated 

that they would share joint legal custody of their children. 

(Furie, at p. 820.) The trial court later granted the mother’s 

request to have sole decision-making authority over the children’s 

orthodontic care. (Id. at pp. 820, 823-824.) Our colleagues in 

Division 1 upheld the orthodontic order under the “best interest 

of the child” standard, explaining that the mother did not need to 

show a significant change of circumstances to obtain it since the 

order did not “rise to the level of a change in legal custody” (id. at 
6

p. 827); the father “continue[d] to share joint legal custody with 

[her]” (id. at p. 826).

The parents in Enrique M. similarly shared joint legal 

custody of their son. (Enrique M., supra, 121 Cal.App.4th at p. 

1375.) After the father moved, he sought to have his son either 

change school schedules or enroll in a new school. (Id. at p. 

1376.) The trial court denied the father’s request, applying the 

changed circumstances rule. (Ibid.) The Fourth District 

reversed, concluding that the request was not to change the joint 

custody agreement between the parents but was rather more 

akin to a change in visitation. (Id. at p. 1382.) The changed 

circumstances rule did not apply. (Ibid.)

Unlike the mother in Furie, supra, 16 Cal.App.5th 816, and 

the father in Enrique M., supra, 121 Cal.App.4th 1371, Father 

does not share joint legal custody of F.D. and S.D. Thus, unlike 

those parents, Father has no direct say in the decisions regarding 

the health, education, and welfare of his children. To have such a 

say, Father must acquire joint legal custody. That, in turn, 

requires him to demonstrate a significant change of 

circumstances showing that a new custody arrangement would be 

in his daughters’ best interests. 

Father did not do so. At the hearing on his request for an 

order directing Mother to send F.D. and S.D. to public school, 

Father testified that he believed in-person school would be in his 

daughters’ best interests. The mediator echoed that belief. But 

the best interest test does not apply here; the changed 

circumstances test does. And Father concedes he has not 

satisfied it. Nor can we read the trial court’s order granting 

Father’s request as impliedly finding that he did; the court did 

not issue an order awarding joint custody, an order for which 
7

satisfaction of the changed circumstances test was a prerequisite. 

(See § 3083 [detailing requirements of joint custody order].) 

We thus conclude that the trial court erred when it granted 

Father’s request for an order directing Mother to send their 

daughters to public school. Prior to issuing such an order, the 

court was required to find that Father demonstrated a change in 

circumstances warranting modification of its initial custody 

order. Not making that finding was an abuse of discretion. (In re

Marriage of McKean (2019) 41 Cal.App.5th 1083, 1089 

[misapplying the law is an abuse of discretion].) Reversal is 

required. (Enrique M., supra, 121 Cal.App.4th at p. 1382 

[reversal required where court applies wrong test].)

DISPOSITION

The postjudgment order granting G.D.’s request for an 

order directing C.D. to enroll F.D. and S.D. in public school, 

entered September 7, 2022, is vacated. The trial court is directed 

to enter a new and different order denying G.D.’s request. The 

stay issued by this court on October 26, 2022, shall dissolve 

automatically upon issuance of the remittitur. C.D. shall recover 

her costs on appeal. 

CERTIFIED FOR PUBLICATION.

BALTODANO, J.

I concur:

GILBERT, P. J.
YEGAN, J., Concurring: 

I concur in the result only. Family Code section 3006 could 

not be written in any plainer language. A parent who has no 

legal custody has no standing to request an order regarding the 

education of children. A choice of where a child is to be educated 

rests in the sole discretion of the custodial parent. It matters not 

what a mediator, or a superior court judge, or an appellate court 

justice, thinks is a better choice.2 Rather than conduct a hearing 

on what was best for the children’s education, the trial court 

should have summarily denied the instant request. That should 

have been the beginning and end of this dispute.

The majority opinion’s discussion of the tendered issues on 

the merits may send an erroneous message to the litigants, the 

trial court, and the family law bar. We should exercise restraint. 

This case has nothing to do with the abuse of discretion rules or 

“move-away” jurisprudence. The majority opinion may be 

interpreted as encouraging a noncustodial parent to litigate 

issues that are foreclosed by statute. At no time in the briefing or 

at oral argument has appellant sought a change of custodial 

status. When asked at oral argument if he was seeking a change 

of legal custody, appellant said, “no.” This is fatal to his defense 

of the trial court’s order.

CERTIFIED FOR PUBLICATION.

YEGAN, J.

2 Parenthetically, I agree with father, the mediator, and the 

trial court. But, as indicated, my views are not relevant.
Rocky J. Baio, Judge

Superior Court County of Ventura

______________________________

Law Offices of Jeffrey A. Slott, Jeffrey A. Slott; The Law 

Office of Greg May and Greg May for Appellant.

Taylor, McCord, Praver & Cherry, Patrick G. Cherry; 

Ventura Coast Law and Douglas K. Goldwater for Respondent.